Citation Nr: 1011351
Decision Date: 03/25/10 Archive Date: 04/07/10
DOCKET NO. 06-25 336 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office
in Seattle, Washington
THE ISSUES
1. Entitlement to service connection for posttraumatic
stress disorder (PTSD) with memory loss.
2. Entitlement to service connection for headaches, to
include as due to exposure from chemical warfare agents
and/or due to an undiagnosed illness or other qualifying
chronic disability, pursuant to 38 U.S.C. § 1117.
3. Entitlement to service connection for a skin rash, to
include as due to exposure from chemical warfare agents
and/or due to an undiagnosed illness or other qualifying
chronic disability, pursuant to 38 U.S.C. § 1117.
4. Entitlement to service connection for chronic fatigue, to
include as due to exposure from chemical warfare agents
and/or due to an undiagnosed illness or other qualifying
chronic disability, pursuant to 38 U.S.C. § 1117.
5. Entitlement to service connection for generalized muscle
and joint pain, to include as due to exposure from chemical
warfare agents and/or due to an undiagnosed illness or other
qualifying chronic disability, pursuant to 38 U.S.C. § 1117.
6. Entitlement to service connection for a sleep
disturbance/sleep disorder, to include as due to exposure
from chemical warfare agents and/or due to an undiagnosed
illness or other qualifying chronic disability, pursuant to
38 U.S.C. § 1117.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant, his wife, and his mother
ATTORNEY FOR THE BOARD
J. W. Kim, Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army
from January 1984 to July 1984 and from January 1991 to
January 1992. The Veteran served in the Southwest Asia
theater of operations.
This case came to the Board of Veterans' Appeals (Board) on
appeal from a November 2005 rating decision of the Department
of Veterans Affairs (VA) Seattle, Washington (RO). In
November 2008, the Veteran testified during a hearing before
the undersigned Veterans Law Judge at the RO. A transcript
of that hearing is of record. In February 2009, the Board
remanded the case to the RO for further development.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran
if further action is required.
REMAND
In the February 2009 remand, the Board, in part, requested
that the RO ask the Veteran to provide more specific
information regarding his reported stressful events during
service, attempt to independently verify the claimed
stressors, and afford the Veteran a VA psychiatric
examination if a stressor is verified.
Accordingly, in March 2009, the RO asked the Veteran to
submit a completed VA Form 21-0781, Statement in Support of
Claim for Service Connection for Post-Traumatic Stress
Disorder (PTSD). Having received no response, the RO issued
a supplemental statement of the case (SSOC) in January 2010
continuing the denial of his claim.
In February 2010, the Veteran's representative submitted to
the Board the Veteran's response to the SSOC along with
statements from the Veteran and his wife. The Veteran's
statement included more specific information regarding his
stressful events during service:
* On arrival in Saudi Arabia in January 1991 with the
649th Military Police Company, his flight's landing was
delayed due to SCUD missile attacks.
* On January 23, 1991 a SCUD missile struck 1/4 mile from
where he was staying in Khobar Towers setting off NBC
(nuclear, biological and chemical) alarms.
* On February 24, 1991 while in the desert south of Hafr
Al-Batin he and Sergeant S. were struck by debris from
an explosion overhead.
* In June 1991 while working with the MCI unit at Port
Dammam a truck fell on an African dock worker, killing
him.
Given the above, the RO should attempt to verify the claimed
stressors and afford the Veteran a VA psychiatric examination
if a stressor is verified. In this regard, the Board
observes that his service personnel records reflect that he
had service in Southwest Asia from January 30, 1991 to
December 3, 1991. Thus, the date of his second stressful
event may not be accurate and the RO should request
verification using the usual 60-day period. Further, his
service personnel records show that he was reassigned to the
822nd Military Police Company effective May 18, 1991.
In another February 2010 correspondence, the Veteran stated
that he previously submitted a buddy statement from his
platoon sergeant. A review of the record reveals that this
statement is not of record. The RO should ask the Veteran to
resubmit a copy of this statement.
In the February 2009 remand, the Board also requested that
the RO afford the Veteran VA examinations to determine the
nature and extent of all pathology, which may be present,
pertaining to headaches, a skin rash, fatigue, generalized
muscle and joint pain, and sleep disturbance/sleep apnea.
However, the RO has not afforded the Veteran such
examinations. The Board emphasizes that a remand by the
Board confers upon the appellant, as a matter of law, the
right to compliance with the remand instructions, and imposes
upon VA a concomitant duty to ensure compliance with the
terms of the remand. See Stegall v. West, 11 Vet. App. 268,
271 (1998). Thus, the RO must afford the Veteran the VA
examinations as requested in the February 2009 remand.
Lastly, in the above February 2010 correspondence, the
Veteran indicated a desire for a copy of his service
treatment records. To ensure due process, the RO should send
him a copy of the requested materials.
Accordingly, the case is REMANDED for the following actions:
1. The RO should send the Veteran a copy
of his service treatment records.
2. The RO should ask the Veteran to
resubmit a copy of the buddy statement
from his platoon sergeant.
3. The RO should attempt to verify the
Veteran's alleged stressors via the United
States Army and Joint Services Records
Research Center (JSRRC). A summary of his
alleged stressors as outlined below and
any relevant information from his service
personnel records should be provided. The
JSRRC should be requested to provide any
additional information that might
corroborate his alleged stressors. A
search of unit and organizational
histories should be conducted in an effort
to verify attacks and casualties if deemed
necessary.
The Veteran's alleged stressors include:
(a) On arrival in Saudi Arabia in January
1991 with the 649th Military Police
Company, his flight's landing was delayed
due to SCUD missile attacks.
(b) On or about January 23, 1991 a SCUD
missile struck 1/4 mile from where he was
staying in Khobar Towers setting off NBC
(nuclear, biological and chemical) alarms.
(c) On February 24, 1991 while in the
desert south of Hafr Al-Batin he and
Sergeant S. were struck by debris from an
explosion overhead, and the back of his
hand above the thumb was cut.
(d) In June 1991 while working with the
MCI unit at Port Dammam a truck fell on an
African dock worker, killing him.
4. After receiving a response from the
JSRRC, the RO should make a determination
as to which (if any) stressors are
corroborated, to include consideration as
to whether the Veteran was involved in
combat. If the RO determines that the
Veteran was involved in combat, then
corroborative evidence is not required
regarding any combat-related stressors.
5. If, and only if, a stressor is
verified, then the Veteran should be
afforded a VA psychiatric examination to
determine the nature and etiology of any
psychiatric disability found to be
present. The RO is to inform the examiner
of the stressor(s) designated as verified,
and that only the verified stressor(s) may
be used as a basis for a diagnosis of
PTSD.
The claims file and a separate copy of
this remand should be made available to
and reviewed by the examiner prior to the
examination, and the examiner should
acknowledge such review in the examination
report.
All necessary tests should be conducted,
and the examiner must rule in favor of or
exclude a diagnosis of PTSD. The
examination report should contain a
detailed account of all manifestations of
any psychiatric disability found to be
present. If the examiner diagnoses the
Veteran as having PTSD, then the examiner
should indicate the verified stressor(s)
underlying that diagnosis. The examiner
should provide a complete rationale for
any opinions provided.
6. The Veteran should be afforded VA
examinations by appropriate physicians, at
a VA medical facility, to determine the
nature and extent of all pathology, which
may be present, pertaining to headaches, a
skin rash, fatigue, generalized muscle and
joint pain, and sleep disturbance/sleep
apnea. The entire claims file, to include
a complete copy of the remand must be made
available to each physician designated to
examine the Veteran, and each examination
report should include discussion of the
Veteran's documented medical history and
assertions.
The purpose of the examinations is to
identify all signs of disorders manifested
by headaches, a skin rash, generalized
muscle and joint pain, and sleep
disturbance/sleep apnea, or fatigue-like
symptoms which the Veteran claims to
experience on a chronic basis as a result
of his Persian Gulf War service. A
complete history, which includes the time
of initial onset and the frequency and
duration of his symptomatology, should be
elicited from the Veteran. All
appropriate tests (to include x-rays) and
studies and/or consultation(s) should be
accomplished (with all findings made
available to each physician prior to the
completion of his or her report), and all
clinical findings should be reported in
detail.
After reviewing the claims file and
examining the Veteran, the examiner(s)
should expressly state an opinion as to
whether any disorders manifested by
headaches, a skin rash, fatigue,
generalized muscle and joint pain, and
sleep disturbance/sleep apnea is/are
attributable to a known clinical diagnosis
(for example, migraine headaches, sleep
apnea, or chronic fatigue syndrome).
For any headaches, a skin rash,
generalized muscle and joint pain, sleep
disturbance/sleep apnea, and fatigue-like
symptoms, which are attributable to a
known diagnosis, the examiner(s) should
offer an opinion as to the most probable
etiology and date of onset of any disorder
that is diagnosed and whether it is at
least as likely as not (50 percent or
greater probability) that the diagnosed
disorder was incurred in or aggravated by
service.
For any of the above signs and symptoms,
which are not attributable to a known
diagnosis, the findings should reflect all
objective indications of chronic
disability to include either objective
medical evidence perceptible to a
physician or other, non-medical indicators
that are capable of independent
verification. Finally, the examiner(s)
should express his or her opinion as to
whether any a skin rash, generalized
muscle and joint pain, sleep
disturbance/sleep apnea, and fatigue-like
symptoms are "chronic" (as having
existed for 6 months or more or as having
resulted in intermittent episodes of
improvement and worsening over a 6-month
period) or was caused by a supervening
condition or event after January 1992.
The examiner(s) should clearly outline the
rationale for any opinion expressed, and
all clinical findings should be reported
in detail.
7. After completing the requested
actions, and any additional notification
and/or development deemed warranted, the
RO should readjudicate the claims in light
of all pertinent evidence and legal
authority. In adjudicating each claim all
applicable theories of entitlement to
service connection should be considered,
to include direct service connection,
secondary, and as due to undiagnosed
illness or chemical warfare exposure, as
appropriate. If any benefit sought on
appeal remains denied, the RO should
furnish to the Veteran and his
representative an SSOC that includes clear
reasons and bases for all determinations,
and afford them the appropriate time
period for response before the claims file
is returned to the Board for further
appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).